Goldsbrough v. Gable

• Decision Date: 18 January 1892
• Citation: 29 N.E. 722,140 Ill. 269
• Parties: GOLDSBROUGH v. GABLE.
• Court: Illinois Supreme Court

140 Ill. 269

29 N.E. 722

GOLDSBROUGH

v.GABLE.¹

Supreme Court of Illinois.

Jan. 18, 1892.

Error to appellate court, second district.

Action on covenant by Richard Goldsbrough against John M. Gable for rent. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff brings error. Reversed.

McCulloch & McCulloch and Sheen & Lovett, for plaintiff in error.

Isaac C. Edwards, for defendant in error.

SCHOLFIELD, J.

Appellant brought covenant against appellee for rent. Upon the trial in the circuit court, appellant read in evidence a deed, executed by himself to appellee, leasing certain real estate in Peoria from March 18, 1883, until March 18, 1884, for $840, payable in installments of $70 on the 18th day of each month; occupation of the premises, after the execution of the deed, by appellee until the 18th of October, 1888; the payment of the stipulated rent for the term described in the deed; the failure of appellee to surrender possession of the premises at the expiration of the term, and his continued occupancy thereof; payment of the same rent for the first month after the expiration of that term, as provided by the deed to be paid by the month during the term; and the payment of other sums for rent from time to time throughout the period that appellee occupied the premises; amounting, however, in the aggregate, to a less sum than the total amount of rent due at the rate provided to be paid by the deed. Appellee was permitted to introcuce evidence, over the objection of appellant, tending to prove that, after the expiration of the term described in the deed, and after he had paid appellant one month's rent for the occupation of the premises at the rate provided to be paid in the deed, namely, on the 28th of May, 1884, he commenced negotiating with appellant to reduce the rent for the premises; that the negotiation was protracted until the 9th of July following, when it was agreed between appellant and appellee that the rent for the premises should be reduced to $50 in lieu of $70 per month, as it had been theretofore; and the court refused to instruct the jury, at the instance of the appellant, that, even if they believed such agreement had been proved, it was ‘invalid, and could not be enforced, ‘but, on the contrary, the court instructed the jury that, if they believed from the evidence that such agreement had been proved, it was valid, and the plaintiff was thereafter entitled to recover only $50 per month for the rent of the premises.

In our opinion, the court erred in these several rulings. There was no evidence given on behalf of appellee tending to prove that he had surrendered the premises to appellant before the making of the agreement of July 9, 1884, or that he had offered to do so, and refused to execute the terms of the lease, or that there was any reason why he could then have surrendered the premises and refused to execute the terms of the deed. Appellee having remained in possession after the expiration of the term described in the deed, without any new contract with appellant in respect thereto, it was optional with appellant to treat him as a trespasser, or to waive the wrong of holding over, and treat him as a tenant; and, by accepting the payment of the month's rent thereafter from appellee, appellant made his election, and appellee then became a tenant of the premises under appellant,...